Howard Cnty. v. McClain

Howard County, Maryland v. Russell A. McClain, et al., No. 1166, Sept. Term 2020.
Opinion by Adkins, Sally D., J.

STATE CONSTITUTION—ARTICLE III, § 33—SPECIAL LAWS: Article III, §
33 of the Maryland Constitution prohibits the enactment of special laws. Special laws
relate to particular persons or things of a class, whereas general laws apply to all persons
or things of a class. Special laws are prohibited to prevent influential persons or entities
from securing an undue advantage over others. Here, the legislative enactment
effectually conferred a benefit on one entity. To determine whether the legislative
enactment is an impermissible special law, the Court of Appeals in Cities Serv. Co. v.
Governor, 290 Md. 553 (1981) outlined factors for courts to consider:

(1) Whether the underlying purpose of the enactment was actually intended
to benefit or burden a particular member or members of a class instead of
an entire class;
(2) Whether particular individuals or entities are identified in the statute;
(3) The substance and “practical effect” of an enactment;
(4) If a particular individual or business sought and received special
advantages from the Legislature, or if other similar individuals or
businesses were discriminated against by the legislation;
(5) The public need and public interest underlying the enactment, and the
inadequacy of the general law to serve the public need or public interest;
and
(6) Whether the legislative enactment is arbitrary and without any
reasonable basis.

Upon consideration of these factors, the legislative enactment at issue was deemed an
impermissible special law.
Circuit Court for Howard County
Case No. C-13-CV-20-000647

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 1166

September Term, 2020

______________________________________

HOWARD COUNTY, MARYLAND

v.

RUSSELL A. McCLAIN, ET AL.

______________________________________

Graeff,
Kehoe,
Adkins, Sally D.
(Senior Judge, Specially Assigned),

JJ.
______________________________________

Opinion by Adkins, Sally D., J.
______________________________________

Filed: February 25, 2022

Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2022-02-25
15:13-05:00

Suzanne C. Johnson, Clerk
This case presents an uncommon occurrence―a successful constitutional challenge

to a zoning authority’s textual amendment. Glenelg Country School (“GCS”) was granted

an exclusive use easement by Appellees, a group of persons who own pipestem strips of

land adjacent to GCS’s property. In order to build on and around the pipestems, GCS

submitted a conditional use petition to the Howard County Hearing Examiner. The

Hearing Examiner denied the petition and GCS appealed. Then, GCS filed for a Zoning

Regulation Amendment to amend the Howard County Zoning Regulations regarding

conditional uses. The Howard County Council limited GCS’s proposed amendments to

the zoning regulations to apply only to private academic schools. After limiting the scope

of the proposed amendments, the Howard County Council enacted GCS’s proposed Zoning

Regulation Amendment as Council Bill No. 9-2020 (“CB-9”).

The Appellees filed a Complaint for Declaratory Judgment against Howard County

in the Circuit Court for Howard County, asserting that CB-9 is an illegal special law

prohibited by Article III, § 33 of the Maryland Constitution. Howard County filed a Motion

to Dismiss, or in the alternative, for Summary Judgment and Appellees filed a Motion for

Summary Judgment. The circuit court denied Howard County’s Motion for Summary

Judgment and granted Appellees’ Motion for Summary Judgment declaring CB-9 an illegal

special law.

Howard County presents us with one question on appeal:

1. Whether the circuit court erroneously concluded that CB-9, a Zoning
Regulation Amendment enacted by the Howard County Council, is an
unlawful special law in violation of Article III, Section 33, when on its
face CB-9 applies equally to numerous private academic schools
approved, or to be approved in the future, as a conditional use in multiple
Zoning Districts in Howard County?

For the reasons below we affirm.

FACTS AND PROCEDURAL HISTORY

Appellees own property along the southern edge of a property owned by GCS. The

Appellees are among a class of persons who own nearby residential properties including

twenty-two 12-inch-wide pipestem strips of land that converge into a single strip that runs

along the northwestern edge of the GCS property and connects to the public Folly Quarter

Road. The Appellees and GCS entered into an easement agreement in 2007. The easement

agreement gave GCS the “non-exclusive right to use the Easement Area for the following

specific purposes, and for no other purposes, to wit, to maintain: (i) an existing play area,

(ii) certain existing paving, (iii) two (2) existing pipes or conduits, (iv) an existing split rail

fence, (v) and the right of ingress and egress to, from, over and across the Easement Area,

strictly for the purposes of implementing maintenance of the aforementioned items . . . .”1

In August of 2008, the Appellees and GCS amended the easement agreement to give GCS

the exclusive right to use the Easement Area.

Because GCS wanted to construct on the pipestems that were part of the Easement

Area, GCS submitted a conditional use petition to the Howard County Hearing Examiner

in October 2016. GCS did not seek written approval from the pipestem owners for its

conditional use petition. The Conditional Use Petition to the Howard County Hearing

Authority states that, “[i]f the Petitioner is not the owner [of the property at issue in the

1
The Easement area includes the area owned by Appellees.

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Petition], written authorization from the owner must be submitted.” The Howard County

Hearing Examiner denied GCS’s petition in regard to construction on the pipestem area

stating that “[n]o school use is permitted on the pipestems.” GCS appealed this denial to

the Howard County Board of Appeals. This appeal is unresolved.

Taking a new approach, in April 2019, GCS filed for a Zoning Regulation

Amendment (“ZRA”), ZRA-188, to amend the Howard County Zoning Regulations, in

particular § 131.0 relating to conditional uses. ZRA-188 sought to amend three provisions

within ZR § 131.0. The proposed amendments were as follows:

Amend Section 131.0.D to exempt setback requirements from lots in common
ownership and allow the Hearing Authority to grant setback variances for
Conditional Uses; Amend Section 131.0.F.2 to accept easements as written
authorization for a petition; and, Amend Section 131.0.N.48 to include child day
care and nursery schools as an accessory use to Schools, Colleges, Universities—
Private (Academic). 2

Prerequisites to getting a proposed amendment on the Howard County Council’s

legislative agenda include a recommendation and report from the Planning Board and a

technical staff report from the Department of Planning and Zoning. See Howard County

Code § 16.208(c)(2). The Planning Board recommended that the Howard County Council

deny all three proposed amendments in ZRA-188. The Department of Planning and

Zoning, however, in its technical report, recommended approval of all the amendments,

with slight modifications.

2
“The Hearing Authority” is used to refer both to the Howard County Hearing Examiner
and the Howard County Board of Appeals. ZR § 130.0.A.2.

3
ZRA-188 was introduced before the Howard County Council as CB-9. The Council

amended the proposed language of CB-9 to apply only to private academic schools. CB-9

amends the Howard County Zoning Regulations in the following three respects. First, the

proposed bill exempts private academic schools from setback requirements of ZR §§

131.0.N and 131.0.O if the property from which the setback is measured is owned by the

petitioner (private academic school) or if the petitioner has an exclusive easement and owns

the property on the opposite side of the easement. The same amended provision allows the

Hearing Authority to treat multiple adjacent exclusive pipestem easements as a single

easement if the total width of the adjacent pipestem easements does not exceed 75 feet.

Second, CB-9 allows the Hearing Authority to proceed with a private academic

school’s proposed conditional use or variance petition if the proposed use is consistent with

the terms and conditions of the petitioner’s exclusive easement and each fee simple

property owner has been notified in writing. Third, when the petitioner is a private

academic school, written authorization from the property owner may be in the form of a

recorded exclusive easement.

The above amendments to ZR § 131.0, through CB-9, were approved by the Howard

County Council on June 2, 2020. The bill was to take effect 61 days after approval.

Appellees filed a Complaint for Declaratory Judgment against Howard County and its

County Council in Howard County Circuit Court challenging the constitutionality of CB-

9. Appellees alleged that CB-9 was a special law and thus unconstitutional under Maryland

Constitution, Article III § 33.

4
Howard County filed a Motion to Dismiss, or in the Alternative, for Summary

Judgment. 3 Appellees opposed Howard County’s Motion to Dismiss, or in the Alternative,

for Summary Judgment and filed their own Motion for Summary Judgment. The circuit

court denied Howard County’s Motion to Dismiss, or in the Alternative, for Summary

Judgment and granted the Appellees’ Motion for Summary Judgment declaring CB-9 an

illegal special law. This appeal followed.

STANDARD OF REVIEW

We review a grant of summary judgment to determine if it was “legally correct.”

Montgomery Cnty. v. Soleimanzadeh, 436 Md. 377, 398 (2013) (quoting Hines v. French,

157 Md. App. 536, 549–50 (2004)). When there is no genuine dispute of fact, “we review

the circuit court’s ruling on the law, considering the same material from the record and

deciding the same legal issues as the circuit court.” Messing v. Bank of Am., N.A., 373 Md.

672, 684 (2003) (citing Green v. H & R Block, Inc., 355 Md. 488, 502 (1999)).

DISCUSSION

The implementation of special laws is prohibited under Article III, § 33 of the

Maryland Constitution. “A special law is one that relates to particular persons or things of

a class, as distinguished from a general law which applies to all persons or things of a

class.” Cnty. Comm’rs of Prince George’s Cnty. v. Baltimore & O. R. Co., 113 Md. 179,

3
Howard County filed a Motion to Dismiss the County Council of Howard County,
Maryland as a defendant, asserting that the “entity does not exist separately from [Howard
County] and lacks the capacity to sue or be sued.” As Appellees did not respond, the circuit
court granted the motion.

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183 (1910). The definition of a special law does not provide a “mechanical rule of thumb”

for deciding cases, because it depends on what constitutes a “class.” State v. Good

Samaritan Hosp. of Maryland, Inc., 209 Md. 310, 329 (1984). “[T]o determine whether

an enactment affects less than an entire class and, therefore, meets the special law

requirements[,]” courts look to the purpose of § 33’s constitutional prohibition. Id.

(internal quotations omitted).

One of the most important reasons for the provision in the Maryland constitution

against special legislation is “to prevent one who has sufficient influence to secure

legislation from getting an undue advantage over others[.]” Maryland Dep’t of Env’t v.

Days Cove Reclamation Co., Inc., 200 Md. App. 256, 265 (quoting Cities Serv. Co. v.

Governor, 290 Md. 553, 568 (1981)); see also Dan Friedman, Applying Federal

Constitutional Theory to the Interpretation of State Constitutions: The Ban on Special

Laws in Maryland, 71 Md. L. Rev. 411, 422 (2012) (noting that Courts should first look to

“whether the legislation violates the historical purpose of the constitutional provision”). A

special law can be constitutional, “if it is tailored to meet new conditions” that the general

law is not adapted to meet. See Days Cove, 200 Md. App. 256, 281 (quoting Jones v.

House of Reformation, 176 Md. 43, 57 (1939)).

To determine whether a law is an impermissible special law that applies only to

certain members of a class, the Court of Appeals has “pointed to various considerations

and factors.” CCI Ent., LLC v. State, 215 Md. App. 359, 396 (2013) (applying factors from

Cities Serv. Co.). In addition to looking to the historical purpose of the constitutional

provision, the factors a court considers are: (1) “whether [the underlying purpose of the

6
legislative enactment] was actually intended to benefit or burden a particular member or

members of a class instead of an entire class”; (2) “[w]hether particular individuals or

entities are identified in the statute”; (3) “[t]he substance and “practical effect” of an

enactment”; (4) “[i]f a particular individual or business sought and received special

advantages from the Legislature, or if other similar individuals or businesses were

discriminated against by the legislation”; (5) “[t]he public need and public interest

underlying the enactment, and the inadequacy of the general law to serve the public need

or public interest”; and (6) “whether [the legislative enactment is] arbitrary and without

any reasonable basis[.]” Cities Serv. Co., 290 Md. at 569–70 (cleaned up).4 No one factor

is conclusive. Id. at 569.

Before discussing these six factors, we return momentarily for consideration of the

overall question of whether the challenged law relates to less than an entire class. See id.

We consider it pertinent―and suggestive of a special law― that CB-9 was introduced by

a private academic school, GCS, to the Howard County Council. The proposed bill sought

to amend the language of ZR § 131.0, which regulates conditional uses. CB-9 was limited

to apply only to private academic schools. The text amendment was further limited to

4
Some courts have blended or broken down the Cities Serv. Co. factors in different ways.
See, e.g., Green v. N.B.S., Inc., 409 Md. 528, 544–45 (2009) (not explicitly including the
“public need and public interest” factor); CCI Ent., LLC, 215 Md. App. at 396–97
(combining the factor of whether an individual or entity is identified in the statute with the
“substance and practical effect” factor); Days Cove, 200 Md. App at 276–79 (analyzing the
“substantive and practical effect” factor together with the “arbitrary and without any
reasonable basis” factor); see also Friedman, supra, at 422–24 (adding a seventh factor
regarding “whether the enactment, although it affects only one entity currently, would
apply to other similar entities in the future”).

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private academic schools with an adjacent exclusive use easement. GCS also benefits as

its several narrow pipestem easements can be treated as one―because the amendment

requires the Hearing Authority to “consider multiple adjacent exclusive pipestem

easements as a single easement if their combined width does not exceed a total width of 75

feet.” CB-9 does not apply equally to the class of private academic schools; it applies to a

subsection of that class: private academic schools with adjacent exclusive use easements

or private academic schools with adjacent exclusive pipestem easements.

We now turn to the six Cities Serv. Co. factors.

Underlying purpose

Howard County asserts that the purpose of CB-9 was not just benefit GCS, but to

benefit the entire class of private academic schools now and in the future. The County

cites Potomac Sand & Gravel Co. v. Governor, 266 Md. 358, 379 (1972), to assert that a

legislative enactment that affects only one party at the time of its enactment should not be

treated as a special law, so long as the enactment is equally applicable in the future.

Potomac Sand applied not to a benefit conferred onto a single party; rather, it applied to a

detriment that applied to only one party at the time of enactment. See id. at 379.

In Potomac Sand, the applicable law prohibited the dredging of sand and gravel in

the tidal waters or marshlands of Charles County. Id. at 361. The Court of Appeals

observed that Potomac Sand & Gravel Co. may have been the only party affected at the

time of the legislative enactment, but any other person or entity who wishes to dredge sand

in the tidal basins of Charles County will be prevented from doing so in the future. Id. at

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379. Thus, the enactment was not a special law intended to strictly burden just one party.

See id. Unlike in Potomac Sand, the purpose of CB-9 was to confer a benefit on GCS.

Laws that confer a benefit, rather than a detriment, on a single party at the time of

its enactment are looked upon more harshly. See, e.g., Beauchamp v. Somerset Cnty.

Sanitary Comm’n, 256 Md. 541 (1970) (finding a law that benefits one party an

unconstitutional special law); Days Cove, 200 Md. App. at 272–73 (distinguishing

enactments that benefit a particular entity from enactments that prohibit conduct now and

in the future). The law at issue in Beauchamp accorded the benefit of a tax exemption to

one American Legion Post. Id. at 543. Here, similarly, the law at the time of enactment

provided only a benefit to GCS―allowing it to gain approval of its conditional use petition.

Thus, the law’s underlying purpose was to confer a benefit on GCS, which weighs in favor

of considering CB-9 an impermissible special law.

Particular individual or entity

This factor cuts against finding CB-9 to be a special law, as GCS was not named

in the bill. We accord limited weight to this factor because it can be easily manipulated

by using narrow descriptive criteria, such as utilized here. This may explain why it has

rarely been considered the tipping point in the analysis. See Cities Serv. Co., 290 Md. at

569 (“[S]tatutory provisions which did not name particular individuals or entities have

been held to be prohibited special laws, whereas enactments naming specific entities have

been held not to be special laws[.]”) (cleaned up).

Substance and “practical effect” of an enactment

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The third factor weighs strongly in favor of finding CB-9 to be a special law as

CB-9 has the “practical effect” of solely benefitting GCS. GCS was the only private

academic school that could take advantage of CB-9 at the time of its enactment and will

likely be the only private academic school to take advantage of the enactment in the

future. Appellees compiled evidence of every conditional use private academic school in

Howard County and the schools’ recorded easements―totaling 38.5 Of the 38,

easements to which private academic schools are parties (not including the GCS

easements), 34 are servient easements in which the private academic school granted

access to another party.

Of the remaining four easements granting benefits to private academic schools,

two were temporary grading easements that have already expired. In a third, the owner

of the property, a church, granted a 10-foot electrical easement to its own cemetery. In

the last of the four, another church sold a portion of its own property but reserved an

easement agreement with the new owner for existing sewer lines.6 None of these

conditional use private academic school easements involved exclusive easements in

which the school owned property on the other side of the easement. Nor did any of these

schools hold exclusive pipestem easements. Based on this evidence, CB-9 has the

5
Appellees included land record searches for conditional use private academic schools in
Howard County as an exhibit to their Motion for Summary Judgment. If the land record
search revealed that the property was party to an easement agreement, that agreement was
included in the exhibit.
6
For the purposes of this opinion, we assume that the churches operate private academic
schools as defined in the Howard County Zoning Regulations.

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practical effect of solely benefiting GCS and the likelihood of it benefitting other private

academic schools in the future is extremely slim.

Howard County contends that Reyes v. Prince George’s Cnty., 281 Md. 279

(1977) requires us to find that CB-9 is not a special law, as there is a possibility that CB-9

could be used in the future by other private academic schools. In Reyes, the legislative

enactment already in place allowed municipalities and counties to finance the acquisition

of industrial buildings. Id. at 303. The General Assembly, through enactment of Chapter

396, expanded the definition of industrial buildings to include “any sports stadium or

sports arena in Prince George’s County.” Id. The bill was alleged to have been enacted

for the sole benefit of Washington National Arena in Prince George’s County as it was

the only sports stadium or arena in the county at the time of the legislative enactment.

See id. at 302, 305. The Court of Appeals, however, ruled that Chapter 396 would

provide future benefits as it would apply to the acquisition or financing of other sports

facilities in Prince George’s County in the future. Id. at 306.

Unlike the enactment in Reyes, we are not persuaded that CB-9 is likely to provide

a benefit to other private academic schools in the future. In Reyes, the sports arena only

had to be in Prince George’s County to qualify. Id. at 306. Here, the private academic

school must: be in Howard County, be a conditional use private academic school, and

hold an exclusive use easement adjacent to its property. Further, to benefit from one of

CB-9’s provisions, the school must hold multiple dominant exclusive use easements over

adjacent pipestem properties with a total width of less than 75 feet. In Cities Serv. Co.,

the State officials and the company that benefited from the legislative enactment asserted

11
that other companies would also benefit from the enactment in the future, but the Court

found that possibility to be “virtually inconceivable.” See 290 Md. at 573. Likewise, we

consider the likelihood that another entity could benefit from CB-9 in the future to be

virtually inconceivable.

Special advantages or considerations

The special advantages factor weighs in favor of finding CB-9 a special law

because GCS proposed the amendments to benefit themselves and received the benefit

once CB-9 was enacted by the Howard County Council.

Public need and interest

The public interest factor also weighs in favor of finding CB-9 a special law.

Appellants assert that CB-9 was supported by public interest because there was a specific

public need to vary setback requirements for conditional uses and to allow private

academic schools with exclusive easements to obtain approval of conditional use

petitions consistent with their exclusive easements. In Cities Serv. Co., the Court of

Appeals held that an exemption for mass merchandisers from the Divesture Law, which

prohibited producers and refiners of petroleum products from operating retail gas

stations, could have a justifiable public interest, but an exemption for one particular

merchandiser was not justifiable. See 290 Md. at 572. Similarly, the setback exemptions

could have a justifiable public interest if GCS was not the sole beneficiary.

There is also no need to require the Hearing Authority to consider conditional use

petitions from private academic schools with exclusive easements because this can

already be accomplished under the general law—the Howard County Zoning

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Regulations. In order to successfully submit a conditional use petition involving a

property with an easement, the application requires the easement holder to obtain written

approval from the property’s owner. Therefore, there is no public need for this

amendment because private academic schools with exclusive easements can already

successfully apply for a conditional use under the general law—so long as they obtain

written authorization from the property owners.

Arbitrary and without reasonable basis

Lastly, the Court weighs whether CB-9 was arbitrary and without reason. Howard

County asserts that CB-9 is not arbitrary and has a reasonable basis because limiting CB-

9 to apply solely to private academic schools helps combat the far-reaching scope of such

a law. We are not persuaded. By narrowing CB-9 to such extent that it only applies to

one property, the Council rendered CB-9 unreasonable.

In sum, all but one of the six Cities Serv. Co. factors cut in favor of declaring CB-

9 to be an illegal special law. The one factor suggesting otherwise―omission of GCS’s

name―is so easy to manipulate in this context that we discount it altogether.

CONCLUSION

Because we conclude that CB-9 was enacted solely to benefit GCS and has the

practical effect of doing just that, CB-9 is an illegal special law. We therefore affirm the

holding of the Circuit Court for Howard County granting Appellees’ Motion for

Summary Judgment and denying Howard County’s Motion to Dismiss, or in the

Alternative, for Summary Judgment.

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JUDGMENT OF THE CIRCUIT COURT
FOR HOWARD COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.

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